Cairncross Review

Lord McNally Excerpts

Tuesday 12th February 2019 Lords Chamber

[Lord Griffiths of Burry Port]

Now your Lordships are rising to the bait, which I appreciate. It was, of course, the same newspaper in Llanelli—and in Llangennech and Llwchwr—but the front page was different. When somebody had moved out of a house, a boat had sunk, somebody had passed the 11-plus or there was to be a flower-arranging display in one of the local chapels, it was my job to tell the community about it.

Community cohesion is undergirded by an active press. None of us should simply take for granted that its disappearance will not have effects. How can the Government address this? The BBC has embedded reporters into local areas, which is brilliant. How much more of this can we hope to do? What about the idea of a regulator, which was picked out from the report by the press this morning? How effective will such a regulator be? What will his or her terms of reference be? Will there be teeth to the job that that person is asked to do?

There are so many questions, but above and beyond them is a very real concern. This is a matter which belongs to Parliament as a whole—and to bipartisan approaches—and is a real problem at a local level. I conclude my remarks by emphasising once again the levels of concern, the health of communities and the need for instruments such as a local newspaper to forge an identity for a locality. Burry Port was never Llangennech, and Llwchwr was never Llanelli, because the press helped us give expression to a real sense of identity. How on behalf of the Government will the Minister—and how will we as a Parliament—make practical proposals to achieve these noble ends?

[Lord McNally (LD)]

My Lords, the noble Lord, Lord Griffiths, paints a romantic and nostalgic picture of the local press, and he is right to do so. But, in trying to solve the problems that face us in somehow helping the Burry Port Star, we must beware. The press owners have come with a begging bowl. They earlier proclaimed their resistance to any government interference, but quite ready to dip their hands into the public purse are very large and rich companies, many of which have delivered redundancy after redundancy to local papers in favour of their shareholders.

That is one of the reasons why local journalism is in the state that it is in. I also suggest that the National Union of Journalists might be added to the list of people to consult that the Minister read out. There is a serious challenge to local media. Dame Frances set it out very bleakly in her report and the Minister repeated it. There is massive technological change and that impacts on how news is received and—particularly with the under-25s—how it is digested.

I welcome some of the actions announced by the Minister to refer some of the recommendations to relevant bodies. However, the ambitions of the Government and newspaper proprietors would be more credible if they had not been so eager to bury the Leveson report and ignore its call for the establishment of a regulator set up by royal charter which could do many of the tasks called for in this report.

As I said, freedom from Government does not seem to stop the press barons from dipping into the public purse. Therefore, although I welcome the recommendations on digital and media literacy, online advertising and news quality obligations, we should be hard-nosed about how and where tax relief and innovation fund money is spent. It is not there simply to line the pockets of Newsquest, JPI Media and Reach, which are all big, profitable companies that have taken the lion’s share of the existing Local Democracy Reporting Service, which costs the BBC £8 million.

Some of the powers advocated in this report could be taken on by the Press Recognition Panel, the independent body established by Parliament under royal charter. The recommendations on how to bring the FANGs within the rule of law go wider than the issues covered by this report but its recommendations on new codes of conduct for online platforms are to be welcomed.

But what do we find in the report? As usual, it is a quick dive to try to weaken the BBC. In almost 40 years of being involved in this I have explained to various media proprietors that 90 years ago a Conservative Government had the common sense to nationalise the BBC as a public service broadcaster with a mandate that consciously distorted the market in favour of public service broadcasting. They want to have a go at the BBC online because it carries the same credibility and weight as the broadcast BBC. I hope that although the Minister has asked Ofcom to look at this, Ofcom will be very sceptical about trying to weaken one of the strongest public service journalism outlets in this country, one which should be defended.

I hope also that the Minster will use his good influence to secure a full day’s debate in this House. This is an important report; so is the one published today by the Press Recognition Panel. This is an ongoing debate and the knowledge that exists in this House would be of benefit in taking a very wide agenda forward.

[Lord Keen of Elie]

I thank the noble Lords. I entirely concur with the observations of the noble Lord, Lord Griffiths of Burry Port, and the emphasis that he laid on local journalism and its impact on and importance to local democracy and indeed to wider societal issues that arise at a local level. To that extent, I believe that we are all pleased with the steps taken by the BBC with regard to the Local Democracy Reporting Service, which has been effective. The conundrum now is how to redress the balance. I believe that a starting point is for the CMA, which has experience and expertise in this area, to look at how the market is working. That will not be a solution in itself but it will give us a starting point from which we can work. As regards a regulator, that is a medium-term or longer-term ambition. Again, we will have to look at how we can develop that, but we are conscious of its importance.

The noble Lord, Lord McNally, made the perfectly valid point that many of our printed press corporations remain profitable. The difficulty is the disparity between the profitability in some areas and the poverty in others, as illustrated recently by the demise of one of the largest publishers of local newspapers in the country. In so far as the press industry seeks to, as the noble Lord put it, put its fingers into the tax pot, it is fair to say that he can anticipate that the Treasury will be pretty hard-nosed about that. We will seek to ensure that any benefits that can be provided go to the right place for the development of public-interest journalism.

I do not see this as an attempt to weaken the BBC, although there might be issues there that we will look at. I appreciate the importance of the BBC as a source of reliable journalism, but perhaps there are areas where it goes where it would not have gone before. I am not sure that it is necessarily in the public interest to have “Love Island” news online—although I may be corrected by some. It seems to me that these are areas where, for example, more commercial enterprises might be allowed into the market. I will just raise that as an issue.

I welcome the comments that have been made. We will want to review matters. The noble Lord raised the question of a debate. Of course, we have the forthcoming White Paper as well, and it may be that, in the light of that, a wider debate will be appropriate.

Central Courts IT System

Lord McNally Excerpts

Wednesday 23rd January 2019 Lords Chamber

[Lord Keen of Elie]

With respect to the noble and learned Lord, it is important to distinguish between two entirely separate systems: the existing system, which suffered the corruption of the routing server, and the proposed new common platform system which is in its testing phase. That is entirely unrelated to the existing system, but is of course connected to the modernisation of the courts system and the case management system, which has been allocated considerable funding at the present time.

With regard to the existing contracts, we are engaging with the provider over this issue. We regret the outage that occurred. Back-up systems did operate. Certainly, I am not aware of thousands of criminal cases being disrupted. I am advised that there is no evidence of cases being adjourned due to the IT issue.

[Lord McNally (LD)]

My Lords, it a fairly easy strike to suggest, as the Labour Front Bench did, that this was all the fault of Chris Grayling. I was also the Minister of State in the Ministry of Justice when we set out to reform court IT. Throughout my political life we have had, periodically, Ministers coming to explain some disaster in an IT system. What I wonder is: what happens next? As he rightly said, the comprehensive view of reform is not affected by this particular malfunction, but I do remember visiting courts and asking, “Have you got any problems with your IT system?” and they would say, “Well, our fax system doesn’t work”. This was long after the rest of the world had sent their fax systems to museums. The original idea is still valid: to invest in technology to make our court systems efficient. Where does the buck stop? I understood that the Cabinet Office also has responsibility for oversight of the efficiency of bringing in these new systems. Who is overseeing this? Who is keeping their eye on it? Or will we wait for another few years, and somebody coming along to explain why that system has not worked.

[Lord Keen of Elie]

I am obliged to the noble Lord for his observations, drawing upon his own experiences in the ministry when we began the introduction of the common platform system. Clearly, we want to move on to that platform fully and as soon as possible. We have already seen some success in the digital approach that has been taken to some forms of casework—such as debt actions and undefended divorce actions—and we want to roll that out further. With regard to the existing system: it is not perfect. If it was perfect, we would not be seeking to replace it. There are back-ups, but they are of limited operability because of the availability of wi-fi in courts in circumstances where it has not been possible for those working there to access their desktop computers. That has been the case in some courts recently, and in the ministry itself, because of this particular problem.

At the end of the day, the Ministry of Justice must consider the effectiveness and efficiency of the computer system that it relies upon, not only as a ministry but also for its attendant agencies and arm’s-length bodies. We accept that we have a responsibility in that matter.

Brexit: Withdrawal Agreement and Political Declaration

Lord McNally Excerpts

Monday 14th January 2019 Lords Chamber

[Lord McNally (LD)]

My Lords, listening to this debate criss-crossing the Chamber, with not all the speeches on one side going one way or the other, has reminded me of a story that Denis Healey used to tell in the 1960s when he was Minister for Defence. A man came to him saying that he had the answer to the Russian submarines patrolling undetected in the North Sea. His solution was to boil the North Sea and, when the water evaporated, the Russian submarines would be left high and dry for all to see. “But how do I boil the sea?”, asked Denis. “Look here, Mr Healey”, said the man, “I have given you the solution. It is up to the Government to work out its implementation”.

After three Brexit Secretaries and the abandonment of numerous red lines, we are left with a compromise which no one defends as anything but the least worst solution. As the noble Lord, Lord Wilson, indicated, what the Prime Minister has been trying to do so valiantly over the last two and a half years is to boil the sea. The mandate which the noble Lord, Lord Lansley, the noble Baroness, Lady Stroud, and others have claimed because of the impressive 17.4 million votes ignores the fact that the vote was spread across a wide range of opinions. It goes from Sir John Redwood’s plans for a light-touch, small-state, buccaneering free-trade country to the socialist utopia that those such as Len McCluskey want. It was not a single mandate to achieve a single objective—hence the problem that the Prime Minister now faces.

It is becoming abundantly clear that the Prime Minister’s compromise offers only the prospect of us stumbling out of Europe with jagged edges and a mass of unfinished business, satisfying no one and ensuring—let us have no doubt—that the civil war in the Conservative Party will continue. In the circumstances in which we find ourselves, I do not see it as an outrage to give the people an opportunity to take stock in the light of the realities that have been exposed over the last two and a half years. The great benefit of living in a democracy is that there are mechanisms which enable people to change their mind. This is not the Charge of the Light Brigade, where we follow orders regardless of the knowledge that someone has blundered. Nor are we, like Macbeth,

“in blood Stepp’d … so far … that Returning were as tedious as”,

going back. We are a parliamentary democracy, with all the freedoms and maturity that that term implies. If ever there was a time to take back control, now is the moment.

I will be followed in this debate by the noble Lord, Lord Pearson of Rannoch, and I am sure that we will once again be presented with his particularly dystopian view of the European Union. I have been in here for nearly 25 years and I will give him full marks for consistency. What would worry me if I were a Conservative is how, over those nearly 25 years, the views of the noble Lord, Lord Pearson, have moved from being those of a rather eccentric voice on the Back Benches to being at the heart of the Conservative argument for where we go next. So let me repeat the view that has motivated me since my student days, reinforced by 50 years of working with and in the European Union. The European Union is the most successful example of multinational co-operation that the world has yet seen. It has set an example to the world of how old enmities can be replaced by fruitful joint endeavours, and it has massively helped to increase Britain’s influence and prosperity.

Recovering from the last two years will be no easy task. It will need Parliament and parliamentarians to regain the confidence to make decisions in the national interest. If, as I hope, that means giving the people the opportunity to have their own meaningful vote, those of us who will be campaigning to remain will have to address the fears that the noble Lord, Lord Skidelsky, and others drew attention to, which were so successfully exploited in 2016. We will have to renew our commitment to a Europe of peace and prosperity, underpinned by human rights and the rule of law. This is a once in a generation decision which every parliamentarian must take individually. It is the Corn Laws; it is the Norway debate; it is our opportunity to learn the lessons from this ghastly episode and say to the young people who will have to live with the consequences of it, “Here is your European future. The hope lives on, the dream will never die”. I will be voting for the amendment of the noble Baroness, Lady Smith, when the House divides.

Scotland: European Union (Withdrawal) Bill

Lord McNally Excerpts

Thursday 14th June 2018 Lords Chamber

[Lord McNally (LD)]

My Lords, I rise for two reasons. First, there is every danger that the noble Lord, Lord Forsyth, will intervene again if any time is left. Secondly, I put to the Minister a saying that was beloved of an old mentor of mine, Joe Gormley of the miners’ union. He said, “Don’t build platforms for malcontents to stand on”—but I fear that that is exactly what the Government are doing. It has been mentioned a couple of times that there were cleverer ways of doing this than the way used by the Government. If we are to get through this properly, they have to avoid the elephant traps which those who have no wish to see this union preserved will put in their way.

[Lord Duncan of Springbank]

My Lords—

[Lord McNally]

I am still within the time limit and I think that the Minister will have time to answer, so he should take no notice of those sitting to his left. I will leave him with one thought that worries me. It is the Conservative and Unionist Party that is overseeing the greatest threat to this union—and that should give some pause for thought.

[Lord Duncan of Springbank]

It seems I have a wee bit of time to answer. The one thing that I will note is that it is always disturbing to go into negotiations to which people have brought with them elephant traps. You would rather hope they were going into them in a much more evolved and sensitive manner to try to reach some sort of consensus. Anybody going into negotiations packing an elephant trap is probably not there for the healthiest of outcomes. I think we have managed thus far to try as best we can to deliver an outcome that will work—indeed, we have done so for Wales. I think we did so for Scotland, too: it is the Scottish National Party and the Scottish Government who decided that that was not the case.

Civil Liability Bill [HL]

Lord McNally Excerpts

Report stage (Hansard): House of Lords
Tuesday 12th June 2018 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords—

[Lord McNally (LD)]

My Lords, I have some trepidation in speaking before a former Lord Chancellor does, but perhaps what I have to say will help. I am grateful to the noble Lord, Lord Faulks, for reminding the House that I was the Minister who took through the LASPO Bill and I have been watching the Labour Front Bench nodding in unison at every word that could possibly embarrass the Government. However, the origins of what we are doing now lie with the last Labour Government, who shared then the growing cross-party consensus that we were becoming a more litigious society, driven by a compensation culture and a determination to have our day in court—the noble Lord, Lord Faulks, referred to Jack Straw’s campaigning on whiplash—and the response to that was the setting up of the Jackson report under Sir Rupert Jackson.

It is interesting to note that one of the reasons for the setting up of the Jackson report under the Labour Government was that the costs in civil litigation were often disproportionate to the issues at stake. Lord Justice Jackson, who has just retired, spoke at the Cambridge law faculty on 5 March 2018 and, reflecting on his reforms, he said that the problem was that,

“Almost everyone perceives the public interest as residing in a state of affairs which coincides with their own commercial interests”—

he might have said professional interests as well.

My locus in this is not as a lawyer—I have told the House before that when I was a Minister I once said to a visiting distinguished American lawyer, “I must explain that I am not a lawyer”, and he said, “Then I shall speak very slowly”—and, given the array of legal advice and talent we have already heard, I tiptoe into this with trepidation. This is based partly on a family experience of a whiplash, which was clearly fraudulent but the insurers thought that the cost of defending was greater than simply settling. That left me with the experience of not only a fraudulent claim but a fraudulent claim which was sustained by the obvious collusion of both the solicitors and the doctor concerned. Therefore, the noble Lord, Lord Hunt, is right to talk about a racket in which many respectable professions are involved. Those overseeing those professions have a duty of care to root out those who are complicit in these frauds.

As I have said, there was a growing cross-party consensus that something must be done. I confess that seven years ago I answered a Question from the Dispatch Box assuring the House of the urgency with which the Government were dealing with the issue of whiplash. I say to my Front Bench and to the noble and learned Lord, Lord Woolf, for whom the affection and respect I have is overwhelming, that I worry his amendment is just another one kicking the problem down the road when everybody else who speaks on it recognises that there is a problem. This has been said on a number of occasions: we are dealing with not the kind of catastrophic life-changing injuries that the noble Lord, Lord Faulks, often refers to when we discuss medical negligence, but the very lowest level of claims where, as the noble Lord again said, many people would not even think of claiming if they were not spurred on by the claims management industry out of its own self-interest.

I fully endorse what my noble friend Lord Marks said about the need for others to take responsibility, not least the industry itself, for fighting fraud and making attempted fraud not worth while. I worry that the legislation says that we need a medical certificate. Somebody said, maybe in a private briefing, that there was one doctor who had a kind of Roneo of letters that he just signed. If you are going to have a medical check in this, you have to make sure that it is not part of the fraud because in the past it has been.

Nevertheless, it is rather sad that we have this collection of amendments. I look forward to the usual forensic dissection of them by the noble and learned Lord, Lord Keen. There are some good and some not so good ideas in there, but I do not want us to see something that becomes a wrecking amendment when we have waited for far too long for this. Perhaps because I am not a lawyer I do not share the fear from the noble and learned Lord, Lord Woolf, that we are setting some terrible precedent that will weaken the role of the judiciary. I do not see that at this very low end of the process. I hope that, in our usual way in this House, we can extract some of the good ideas that have been put forward but not lose the sense of urgency with which the Bill, at last, tries to address a real problem in a practical way.

[Lord Mackay of Clashfern]

My Lords, I will speak primarily about the amendments that my noble and learned friend Lord Woolf has proposed. This part of the Bill is concerned only with claims for pain and suffering. It has nothing to do with any other form of loss. Other forms of loss are easily quantifiable, but loss arising from pain and suffering is a development of the law that has very little in the way of structure.

When I was a junior at the Scottish Bar long ago these matters were often the subject of jury claims. Pain and suffering was an element in a jury claim. The judges were warned against suggesting a figure to the jury. You can imagine how difficult it was to provide a summing up that dealt with that. I remember well that one of the senior judges that I knew had a formula in which he said, “This is a sum to mark your sense of the pain and suffering that the claimant has suffered”. That was done by juries; it was before the time that judges were involved in this, and therefore it was a jury question. It has all the character of a jury question in the sense that there are no rules that I know of—none has so far been quoted—to determine the amount to be given. How has that been done? As my noble friend has just quoted from the judicial guidance, it has been done by collecting what others have decided in other cases. There is nothing specifically judicial about that. I think almost any of us could manage to deal with that; you do not need to be a very experienced judge to do that kind of calculation.

Proposed Media Mergers

Lord McNally Excerpts

Tuesday 5th June 2018 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, I am obliged to the Minister for repeating the Statement made earlier by his right honourable friend the Secretary of State in the other place. On the decisions announced today, the best thing that can be said is that they are not unexpected. Comcast cast a shadow, but not as long as that of 21st Century Fox or indeed the Murdoch Family Trust. The key issue raised today is the question of what undertakings would be accepted to ameliorate the CMA finding that a Sky-21st Century Fox merger is likely to operate against the public interest on media plurality concerns. I do not disagree that divestment of Sky News to a suitable third party such as Disney is the least worst of the available options, provided that appropriate remedies are put in place to assuage media plurality concerns.

The CMA report sets out some draft terms for such a divestment and Fox has indicated that these are acceptable. However, the Statement makes it clear that more work is required on this issue and we will want to scrutinise carefully what is finally proposed, to ensure that Sky News remains financially viable over the long term, is able to operate as a major UK news provider and is able to take its editorial decisions independently, free from any potential outside influence. Will the Minister confirm that Parliament will be kept informed of progress in these negotiations?

In the conclusion to his Statement, the Secretary of State says that the Government have followed,

“a scrupulously fair and impartial process, based only on relevant evidence and objectively justified by the facts”.

I was glad to hear that. As required by the Enterprise Act 2002, the Secretary of State has been operating in a quasi-judicial role and I accept that both he and his predecessor have been punctilious in following that approach. However, if we are reaching the end of this complex process, does the Minister accept that if,

“we want to see a broadcasting industry in Britain that is strong and effective and competitive”,

as the Statement has it, we need urgently to review whether we have the right regulatory structure and statutory powers in place for the modern world?

Does the Minister agree that there are aspects of the public interest test on media mergers which now need to be reconsidered? Many of the powers are found in the Communications Act 2003, which first brought in the public interest test for media mergers. Fifteen years on, the media landscape has greatly changed and with it comes the need to review, strengthen and future-proof this important legislative measure. We need to widen the definition of “media enterprises” to which the public interest test refers. Currently, the definition does not include enterprises such as Google, YouTube, Facebook, Twitter, Snapchat and others. Nowadays, many people take more of their audio-visual content off YouTube than from conventional broadcast channels, or they seek their news through Twitter or from apps on smartphones and thus not necessarily through broadcast platforms and channels. If the public interest can be engaged by the dominance or inappropriate control of a broadcast channel, why is it not engaged by the platform or channel through which large-scale news-related and other material is delivered to the whole population?

Ofcom needs the same powers when carrying out its Enterprise Act competition functions as are currently available to the Competition and Markets Authority, and specifically the power to require the attendance of witnesses and the production of documents. Without these powers, Ofcom is playing second fiddle. We need to think harder about the fit and proper test itself, which is currently couched as the,

“commitment to the attainment in relation to broadcasting of the standards objectives”.

However, these standards relate only to television and radio services. We need to think about how a commitment to the attainment of standards can be evidenced through the control of media enterprises that are more widely construed. This test would eliminate the risk that behaviour outside the scope of television and radio, and beyond the specifics of the broadcasting standards code, would not be able to be drawn in aid in determining fitness. Presumably we are also thinking about the question of control over other channels, newspapers and organisations. I also think that we could learn from the experience of the “fit and proper test” in other sectors such as financial services.

Finally, we need to think harder about how to protect the editorial freedom of the news services of media enterprises and see that safeguards are in place. Media plurality—the plurality of ownership—does not necessarily mean that editorial freedom is protected and safeguarded.

[Lord McNally (LD)]

My Lords, I thank the Minister for repeating the Statement. For someone who is not always clear on these great battles, where does this put the Comcast bid and the Fox-Disney bid? Are they now parallel bids and will Sky shareholders now decide which is the best deal? I read somewhere that Sky has advised its shareholders that it no longer stands by an earlier recommendation to accept the Fox bid. Once the procedure has been gone through, will it be a straight fight on price for Sky or are there other considerations?

I associate myself with what the noble Lord, Lord Stevenson, has just said: this keeps on happening. No other country in the world would allow important parts of its media industry to be fought over by foreign interests in such a way. We have here a battle between three massive American media conglomerates over a key part of our media industry. Moreover, as the noble Lord has just said, all this is being done in the long shadow of even bigger technology companies that may be coming in. We need a framework of defences for this key sector. As we said when we considered these issues 20 years ago, we are not talking about tins of beans. When these companies pass on to different control, we are talking about an essential part of a functioning democracy. There is a case for looking at the powers of Ofcom and the CMA and the Government’s responsibilities in this media area, which are badly in need of an overhaul.

The only other thing I have to say is that it is important that we get the decision right. I am always worried when the Secretary of State gives himself timetables of 15 days, or whatever. The important thing is making sure that we get it right. I also underline the importance of Parliament being kept fully informed and consulted on decisions that are taken.

[Lord Keen of Elie]

My Lords, I am obliged to the noble Lords, Lord Stevenson and Lord McNally, for their observations on the Statement. Clearly, the terms of any divestment, which will be a requirement of the Fox bid, must be sufficient to ensure the remedy’s effectiveness over the long term. That is why reference is made in the report to a period of 10 years.

The Secretary of State has already instructed officials to begin immediate discussions with Fox and its representatives on the detail of the proposals so that work can be done to take us towards an agreement—we hope—on the final form of any undertakings. Once that is in place and the undertakings are in a form that he is prepared to accept, the Secretary of State will be required to consult on them. He must allow a minimum of 15 calendar days for responses. Of course, Parliament will be kept informed of the consequences of that process.

Regarding the points raised about other platforms and their dominance—reference was made to Google, for example—we committed to reviewing the media public interest considerations during the passage of the then Digital Economy Bill. That can now be taken forward, as is our intention.

As far as Ofcom’s powers are concerned, it is important to maintain and understand the distinction between the role of Ofcom in the phase 1 stage of an inquiry and the role of the CMA in the more intensive phase 2 stage, where the CMA has greater powers than Ofcom. However, Ofcom has indicated that it is satisfied that it has the powers it needs to conduct the form of review required under the Act in respect of a phase 1 inquiry.

The competing bids of both Comcast and Fox can be taken forward. Where that process concludes will ultimately be a matter for the shareholders of the relevant companies. In a sense, this decision leaves them on a level playing field, commercially, as far as their respective bids are concerned.

Data Protection Bill [HL]

Lord McNally Excerpts

Ping Pong (Hansard): House of Lords
Monday 21st May 2018 Lords Chamber

Moved by

[Lord McNally]

Leave out “62BC to 62BF in lieu of Amendment 62B” and insert “62BD to 62BF in lieu of Amendment 62B but do disagree with the Commons in their Amendment 62BC and do propose Amendment 62BCA in lieu—

62BCA After Clause 176, insert the following new Clause—
“Effectiveness of the media’s dispute resolution procedures
(1) The Secretary of State must, before the end of each review period, appoint an Independent Reviewer to report to the Secretary of State, before the end of each review period, about—
(a) the use of relevant alternative dispute resolution procedures during that period in cases involving actual or alleged failure by a relevant media organisation to comply with the data protection legislation, and
(b) the effectiveness of those procedures in such cases.
(2) For the purposes of subsection (1) the Independent Reviewer must be—
(a) the Press Recognition Panel (incorporated by the Royal Charter dated 3 November 2014), if it agrees to act, or
(b) otherwise, a person who is or has been a judge of the High Court, the Court of Appeal or the Supreme Court.
(3) A person reporting under subsection (1) must have regard to the Leveson Inquiry - Report into the culture, practices and ethics of the press laid before Parliament under section 26 of the Inquiries Act 2005 and in particular any relevant conclusions and recommendations.
(4) As soon as practicable after receiving a report under subsection (1), the
Secretary of State must—
(a) lay a copy before Parliament; and
(b) send a copy to the Scottish Ministers, the Welsh Ministers and the
Executive Office in Northern Ireland.
(5) In this section—
“relevant alternative dispute resolution procedures” means alternative dispute resolution procedures provided by persons who produce or enforce codes of practice for relevant media organisations;
“relevant media organisation” means a body or other organisation whose activities consist of or include journalism, other than a broadcaster;
“review period” means—
(a) the period of 3 years beginning with the date on which this Act is passed, and
(b) each subsequent period of 3 years.”

[Lord McNally (LD)]

My Lords, like Pavlov’s dog, MailOnline this morning had the headline:

“House of Lords to make extraordinary THIRD bid to curb press freedom”.


Fulfilling the ambition of a lifetime, it has a photograph of me and suitable condemnation of this amendment.

In defence of the amendment, I refer to the interesting summation that the Minister made in his speech. I will come later to his blood-curdling threats about what would happen if we were to lose the Bill. On the question of historical offences, hands are not tied, nor time-limited. What was illegal then remains illegal now. There is no amnesty. It was worth tabling this amendment to get that on the record as a reminder of where we are on past criminality in this area. What it is not, as claimed by MailOnline, is an attempt to reopen the debate.

The amendment proposes to amend the Government’s Motion, which gives the Secretary of State the task of assessing the dispute resolution procedure and arbitration schemes, adopted by non-broadcast media regulators every three years. Instead, I propose that this task should be undertaken not by a politician but an independent body—the Press Recognition Panel, which is entirely independent of political, state or industry control. It would have the added advantage of being able to assess the effectiveness of dispute resolution procedures guided by the criteria set out in the Leveson report.

In moving the amendment, let me deal with a number of accusations levelled at those who sought to amend the Bill to make it Leveson-compliant during its passage in this House. First, we were told that we were hijacking the Bill to deal with matters that had nothing to do with data protection, only for the Government to bring forward their own print media-specific amendments, not least the one on the Marshalled List today. The truth is that the line between print and online is fast disappearing. Where does the Daily Mail end and the MailOnline begin? It is no accident that many of the hundred organisations that have joined Impress are online publishers. I have often thought that if Facebook and others wanted to get ahead of the game and be really smart, they would sign up for Impress and leave IPSO as a kind of dinosaurs’ graveyard of the old print media.

Then, we had the Minister’s threat that we were putting the whole Bill and the future of data protection in jeopardy by the various amendments because, as he said, the Bill must be passed into law by 25 May. If chaos is not to reign in the data protection world, we have to give a speedy passage regardless of shortcomings. I was a business manager in this House during the coalition, and I worked for the Callaghan Government in the 1970s when they came under various pressures from this House. The truth is—and we all know it—the Government will get their business, perhaps a little bruised and with a few ministerial reputations dented, but the Bill will be delivered on time, and Ministers should stop spreading scare stories and instead treat amendments on their merits.

Then, of course, there is the Salisbury convention. We have to face the fact that the squalid deal between the press barons and the Tory party to drop Leveson 2 was squeezed into the Conservative manifesto and thus became protected by the Salisbury convention. The convention was given fresh life by the Cunningham committee, of which I was a member. So let us be clear: the Salisbury convention promises that this House will give a Second Reading to a manifesto Bill; it does not protect that Bill from scrutiny or amendment—nor is there anything wrong in asking the Commons more than once to consider this. I think I hold the record: I knocked back the Bill on Murdoch’s predatory pricing of the Times six times, and would have done so a seventh if Len Murray, my chief Labour conspirator, had not told me that enough was enough.

--- Later in debate ---

[Lord McNally]

My Lords, I made it quite clear that I was putting the amendment in context. The noble Countess intervenes on many noble Lords on many speeches in a way that actually delays the House rather than helps it.

As suggested in my opening remarks, this is not an attack on freedom of speech of the press. I had the great pleasure of working with Hugh Cudlipp, who was editor of the Daily Mirror and responsible for that great popular newspaper, which I read avidly when growing up in the 1950s and 1960s. I was also very fond of John Junor and his hard-hitting column in the Sunday Express. I admired William Rees-Mogg for his editorial attacking the prosecution of Mick Jagger for drug offences under the headline, “Who breaks a butterfly on a wheel?” And, of course, I remember the great crusade on behalf of the Thalidomide victims by Harry Evans of the Sunday Times. I am so pleased that Harry has been at our side in this battle to see Leveson implemented.

[Lord Elton (Con)]

My Lords—

[Lord McNally]

I am 30 seconds off.

[Lord Elton]

I wanted to back up my noble friend Lady Mar, whose interventions are usually absolutely on the ball—and she is quite right this time, too.

[Lord McNally]

I am very interested in that—perhaps we can debate procedure in this House another time. I do not think I am out of order, and I am within 30 seconds of finishing a very long debate, in which a number of people have asserted some rather hurtful things about those of us who have spoken about the freedom of the press.

I went into that little bit of history, because I do not think that in 30 years’ time Paul Dacre or Kelvin MacKenzie will be spoken of in the same breath as Cudlipp or Evans, or even Junor or Rees-Mogg. The Daily Mail is said to be the Prime Minister’s favourite newspaper, yet it is the embodiment of the nasty party that she once so rightly condemned. I think Matt Hancock will regret becoming Paul Dacre’s poodle, and I think the old print media will regret not protecting themselves within the strong walls of the royal charter, as the long shadow of court judgments and the growing power of the ICO come into play. On behalf of the victims of press criminality and malpractice, I express my admiration for the noble Baroness, Lady Hollins, for ensuring that their voice has not gone unheard.

The Government will have their business, but I urge Ministers to accept this amendment as being in keeping with the arguments, which they themselves have used during the passage of the Bill, that major regulation should not be in the hands of politicians and regulators should be independent of both government and proprietors if real press freedom is to be safeguarded. In order, I beg to move.

[Lord Lester of Herne Hill (Non-Afl)]

I have voted against a three-line whip on earlier amendments of this kind, and will do so again today on this amendment, or any others like it. I entirely agree with the Minister in all respects. The Bill is now fit for purpose and represents a fair compromise. Without making a meal of it, I regard the amendment in the name of the noble Lord, Lord McNally, and similar ones, as unnecessary regulation, unprincipled, contrary to freedom of speech and unique in the democratic world. I know of no country that is a true democracy that has anything like this. I am surprised that it should be put forward by anyone who is a Liberal Democrat.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I am grateful for the contributions of noble Lords. The noble Lord, Lord McNally, referred to me making blood-curdling threats. I made no threats—blood curdling or otherwise—and what I did say was essentially true.

This Bill is about data protection. The primary concern of your Lordships’ House, which we have debated over recent months, is whether individuals have the ability to defend themselves against excessive press intrusion, and the Bill now provides a number of mechanisms to address this concern. These are all designed to maintain the freedom of the press and the independence of self-regulation, albeit in compliance with the law. For example, it was announced three weeks ago that IPSO will introduce a low-cost mandatory arbitration scheme. We are determined that there will be no backsliding on that kind of commitment, and Commons Amendment 62BC is designed to ensure that the use of such schemes is reported on—a point to which I will return in a moment—to reduce any temptation there might be to turn away from them once the heat of the Bill is off.

The noble and learned Lord, Lord Falconer, sought, with vim and vigour, to address two points. I was slightly taken aback because, a few minutes before we began this debate, I had endeavoured to explain to him the operation of Clause 174(3)(b) and its interrelationship with Clause 144, and thought I had done so quite well. However, clearly I failed to some extent in that regard. I had also sought to give him further assurances about the role of the Secretary of State.

On the first point—the operation of the Information Commissioner’s powers—as I had sought to explain to the noble and learned Lord, under his amendment the Information Commissioner would have had access to prepublication material gathered for journalistic purposes. It was acknowledged across the House, and by the noble Lord, Lord McNally, during earlier debates that that could not be tolerated given the intrusion it would involve upon press freedom and journalistic preparation. The interrelationship between Clauses 174 and 144 is complex, but I again make it clear that the effect is that the commissioner will not be able to access prepublication journalistic material but will be able to access material that has been processed for the purposes of journalism.

On the second point, about the power of the Secretary of State, one has to be clear that this is not actually a power but simply a duty to report. It is for the Secretary of State to report, and he could do so even without an express statutory power, but this is to underline it. We are making it a clear duty, to import transparency into the process. He will essentially be reporting on the metrics available with regard to the take-up of alternative dispute resolution. The effectiveness of dispute resolution will be determined by reference to its take-up and its resolution. It will then be for us—Parliament and the people—to determine in light of those facts whether we consider that further steps have to be taken.

Let us be absolutely clear: the Bill imports no power on the part of the Secretary of State to compel the media to act in any way on the report that he is putting in place. This is simply a mechanism by which he can ensure that the relevant facts and figures—if I can put it that way—are laid before Parliament at the appropriate time. I hope that I have been able to put both those reassurances with greater clarity than I did a few minutes earlier, and to reassure the noble and learned Lord on those points.

I am obliged to the noble Lord, Lord Stevenson, for the observations he has made, and I hope again that he is reassured by the position the Government have now adopted regarding the intent and consequences of the amendments from the House of Commons. As regards the observations from other noble Lords around the House, I recognise that there has been widespread concern about the way in which we have been able to address the past and the need to address the future, having regard to the fundamental requirement for freedom of the press—one of the foundations that underpins our democratic process. Before closing, I acknowledge the contributions of the noble Baroness, Lady Hollins, to this entire debate. I quite understand why she has maintained the need to bring these matters before the House on a number of occasions, and I do not seek to imply any criticism of her in that regard.

We have reached a point where the Bill should pass, however. It has to, really. It is in those circumstances that I invite the noble Lord to withdraw his amendment to Motion A.

[Lord McNally]

My Lords, when I studied the British constitution 50 years ago I read the books by Sir Ivor Jennings, who said that one of the only weapons that an Opposition have against a Government is time, and that an Opposition—and, indeed, critics on a Government’s own Benches—are perfectly entitled to use time to put pressure on Governments. My goodness, we have had a cascade of useful changes because we have used time to press the Government further on the issue.

As I said before, the line between the Daily Mail and the MailOnline is increasingly blurred. This legislation will be tested against that blurred background. At some stage, the old print media may regret not being in the comfortable protection of a royal charter, as my learned friends listening to this debate must think that there is a lot of work ahead for them as this Bill is tested.

We never wanted to stop the Bill coming into law, and I beg leave to withdraw Motion A1.

Motion A1 (as an amendment to Motion A) withdrawn.

Civil Liability Bill [HL]

Lord McNally Excerpts

2nd reading (Hansard): House of Lords
Tuesday 24th April 2018 Lords Chamber

[Lord McNally (LD)]

My Lords, it is always a pleasure to follow the noble Lord, Lord Hunt. As I have reminded the House before, we once sat on the same committee, which was modestly called young Atlantic political leaders—where are they now?

It is very difficult to know where to insert oneself in a debate such as this with so many expert contributors, so let me begin at the beginning. During my childhood, I had two quite serious but non-permanent injuries that could probably be pinned on the school and the building I was in when they happened. Looking back, I know that it would never have occurred to my parents to sue somebody because of these misfortunes. Yet, in preparing for this debate, I decided to Google “injuries at school” to see what would happen. Up came a whole smorgasbord of offers: “Has your child been injured in the nursery?” and “Has your child been injured in the playground?” It seems to me that the tenor of the debate so far almost accepts as a given a change for the worse in our society. I do not know whether the spokesman for the Opposition is about to sue Transport for London for his injury—he is shaking his head, which is good; he is going in the right direction—but people see compensation as being worth the risk.

When I came to this House in the late 1990s, one of my first interventions was made in shock after I had been off and spent the afternoon watching daytime television. I saw advert after advert—not unlike the adverts inviting you to play the National Lottery—saying that if you had had the good fortune to have an injury, there might be some money in it for you. I have heard the statistics that my noble friend Lord Sharkey cited; nevertheless, what has happened has cheapened our concept of justice. Access to justice is right; certainly, when we hear the example given by the noble and learned Lord, Lord Hope, of the lady who was severely injured in a motor accident, we understand that of course there must be protection. But we have to have the courage to say that access to justice is not limitless and should not lead to clogging up the courts or to cases that increase costs throughout the system.

One thing that has come up when we have debated this before is personal experience. I suppose I should therefore give one other example. A couple of years ago, my wife had a little bump at a T-junction. When she got home, she told me that she had exchanged numbers with the other driver. I said, “Oh well, if you bumped into him, you bumped into him—I’ll ring him up”. The guy was a taxi driver. I spoke to him; we had a civilised conversation. I said, “Look, get the car checked over. Send me the bill and I will settle it”. We did not hear anything for some weeks, and then we were told that the driver had sustained a whiplash injury. I live in St Albans and it was now being handled by a solicitor in an east Lancashire town and they had provided evidence from a doctor in south Manchester. I immediately said, “This is a scam”.

I wrote to the chairman of our insurance company saying it was a scam and that my wife was willing to give evidence if they wished to challenge this obvious attempt to defraud the company. A few weeks later, we got a letter saying that the company had settled the claim because it was under £5,000 and it was not worth fighting. I wonder how many claims of £5,000 and under are settled in that way. Is it a victimless crime—or one that is passed on to the consumer?

I do not accept that this is so small a problem that it should not be dealt with, and I welcome the Government’s attempt to do so. In 2010 when I came into this place, I went to the Ministry of Justice. Between 2010 and 2013 we tried to bring forward some reforms in this area. In the previous Labour Government, Jack Straw campaigned on this issue and has continued to do so. This is an issue that needs addressing. As my colleague and noble friend Lord Sharkey said, we will tease out some of the things that are being put forward to Committee, because that is what we are here for.

The noble and learned Lord, Lord Hope, set the scene for the second part of the Bill. It was one of the most difficult pieces of work that one faced as a Minister. I was greatly helped at the time by the noble Lord, Lord Faulks, who succeeded me at the MoJ, and by the noble Lord, Lord Ribeiro. It is horrible to hear a case like the one we were given and then have to bring it down to some mathematical solution to give that person justice, but that has to be done. We have to ask in the Bill whether some of those powers should be given to the Lord Chancellor alone, or if there are other ways. We hear what the Delegated Powers Committee has said about certain of those responsibilities, and it has said that a whiplash injury should be defined. We will probably bring that forward in Committee. The tariff for injury should also be in the Bill.

There will be questions about whether the definition of a minor injury being up to two years is excessive. Is the small claims limit set too high at £5,000? As has been said, how will the Government ensure that the consumer and not the insurance companies benefit from these reforms? Nevertheless, this is timely legislation.

In the past, we have managed to get a degree of cross-party agreement that reform in this area is needed, and I hope that in the great tradition of the Lords, the expertise here will be used to help the Minister carry forward a Bill that is really worth while. What he certainly has, and which I had, is the presence of the noble and learned Lord, Lord Mackay, in his regular place behind him. Throughout any difficult and torrid debates in Committee on the Bill, he will come to the help of Ministers who flounder at the Dispatch Box. It is a very reassuring thing to see and, like the noble and learned Lord, Lord Hope, I look forward to hearing the contribution of the noble and learned Lord, Lord Mackay, to this debate.

Media: Press Sustainability

Lord McNally Excerpts

Thursday 22nd March 2018 Lords Chamber

[Lord Keen of Elie]

We have to identify a model by which the local and national press can continue to deliver what is required of an independent and informed news source. That has been the subject of change, clearly; we have passed from the days when a piece of journalism could be accompanied by an advertisement and, therefore, self-sustaining. We have to look at how we can sustain our media in future.

[Lord McNally (LD)]

My Lords, will the Minister not consider that his one-word reply to my noble friend Lord Razzall holds only till the next newspaper scandal hits us? Will he not accept that we still have a media self-regulating in its own self-interest, and that the abandonment of Leveson 2 is a massive missed opportunity, given that data is now today’s headline?

[Lord Keen of Elie]

No.

Leveson Part 2: Sunday Times

Lord McNally Excerpts

Wednesday 7th March 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, the Government have to take decisions about what is proportionate, appropriate and in the public interest. Our analysis is that the terms of reference for part 2 have already largely been met and that the cost and time of part 2 would be disproportionate and not in the public interest.

[Lord McNally (LD)]

My Lords, one of the things we did not have last Thursday when the noble and learned Lord made his Statement was Sir Brian Leveson’s letter. In both Houses, an impression was given that Sir Brian basically accepted what was going along. Through Hansard I urge every Member of this House to go to the House of Lords Library and look at the letter, which is a devastating six-page indictment of what this Government have done. He makes it very clear that he wanted to go on with it. He does not accept that IPSO is up and running so wonderfully. He points out examples, such as the Manchester terrorist outrage reported by the noble Lord, Lord Kerslake, where there was intrusive press behaviour, and in the letter he quotes recent worrying police and media collusion. He also challenges the Government about cost. It is a devastating indictment. Does the Minister think that the way the Government have handled this is in any way in the spirit of the Inquiries Act 2005, which requires consultation with the chairman as a safeguard so that no Government will cut and run from an inquiry? That is exactly what this Government have done. Will he again consider a more constructive response to what was said by the Official Opposition? We were getting this right when we were working together. It has gone badly wrong since the Government have started cutting their own deals with the press barons.

[Lord Keen of Elie]

My Lords, of course since the 2005 Act we have to consult the chairman of an inquiry, and that is exactly what we did. Thereafter we had to make a judgment about the way forward. Newspapers today are in a very different position from when the phone-hacking scandal occurred back in 2011. The events just reported relate to a period between 1995 and 2010. We have seen significant reforms to press regulation, and we have discussed that before in this House. It is our considered opinion and judgment that it is not appropriate or proportionate to proceed with part 2 of the inquiry.